AMMAKANNAMMAL Vs. VKDAMODARA MUDALIAR

JUDGEMENT

(1.) This is a suit by the plaintiff for a declaration that the deed of trust executed by her on the 11 March 1920 in favour of the defendants was obtained by fraud and misrepresentation and is inoperative, for setting aside the trust deed on the ground that she was not competent to create the trust, for possession of the suit house and mesne profits. The plaintiff died pending suit leaving a will and the executor under the will has been brought on record.

(2.) One Venkatarama Mudali, the husband of the plaintiff, who was the last male holder of the property mentioned in the plaint, died on the 1 October 1891 leaving the plaintiff his widow and two daughters Rathnakshi and Ponnammal. He left a will dated the 12 July 1889 as to the genuineness of which there is no dispute as both parties rely on that will in support of their case. " The will after setting out the title of the testator to the property proceeds as follows: Therefore, after my lifetime, my elder daughter Rathnakshi Ammal, wife of the deceased Duraisamy Mudaliar of Adambakkam, shall take into her possession the aforesaid immovable property and the other moveables and after meeting the expanses for tax and repair out of the rental income derivable from the said house, shall maintain with the remaining income, my wife and her mother Ammakannammal, as well as herself. Further if my younger daughter Ponnammal, the wife of Kunnathur Ganapati Mudaliar, finding it inconvenient to live with her husband who has taken a second wife should come away to (live with) her who is her sister and with her mother, she (my elder daughter) shall protect the said Ponnammal also without giving any differential treatment. Besides as I have no other male or female issue than the said two daughters as the said Rathnajoshi Ammal has now lost all (possibility of having) issue and as the said Ponnammal has had no issue till now, Rathnakshi shall arrange that, after the death of my wife and my daughters the whole of my said property shall be taken and enjoyed by the issue of the said Ponnammal if the latter happens to bear issue in the future. If the said Ponnammal does not happen to have any such issue, my wife and Rathnakshi Ammal jointly or the survivor after the death of either of them may make arrangements such that such of them as they choose may get and enjoy (properties). My ordinary household sundry articles shall also be provided for in the same manner. But any arrangements made by my wife, and Rathnakshi Ammal jointly, or by one of them on surviving the other, and providing for persons of their choice taking and enjoying the property, shall take effect after the deaths of wife and my two daughters. Such is the will which, having-been written to my dictation and found to be correct on being read out (to me), I make and leave, willingly and of my own free will.

(3.) Rathnakshi died issueless on the 7 October 1915 and Ponnammal died issue-less on the 5 January 1918. On. the 25 October 1916, Ammakannammal executed a deed of gift in respect of the house mentioned in the plaint in favour of the trustee of a temple in Chintadripet. It will be noted that this deed was executed during the life time of Ponnammal but after the death of Rathnakshi. On the 11 March 1920 the plaintiff executed another deed in favour of the present defendants whereby she after reciting that the deed of 1916 was not acted upon arranged for the performance of the trust mentioned therein through the defendant. She then filed the present suit on the 15 March 1924 in forma pauperis to set aside the deed of trust. After filing the suit she executed a will dated the 18 March 1924 whereby she gave the properties to the grandson and granddaughter of her husband's brother. Probate was granted of this will which has been filed as Ex. A in the suit. The contention of the legal representative of the plaintiff is that under the terms of the will of the plaintiff's husband she had no power to execute the deed of trust during her lifetime and that consequently the will executed by the plaintiff takes effect as being executed in pursuance of the power conferred upon her by the, will of her husband.